HKSAR v. LEUNG KA KIT

HCMP 1731/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1731 OF 2014

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J U D G M E N T

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1. This is an application for bail which has been fast‑tracked by the Department of Justice to this court because of the scandalous circumstances in which Permanent Magistrate, Mr Symon Wong, withdrew the defendant’s bail at Eastern Magistrates’ Court on 14 July this year.

2. In short, the defendant was arrested on 30 April 2014 and he was charged on 10 June 2014 with two offences.  The first was possessing apparatus fit and intended for inhalation of a dangerous drug contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134.  The second charge was the possession of a crystalline solid containing 0.55 of a gramme of methamphetamine hydrochloride, contrary to section 8(1)(a) and (2) of the same ordinance.

3. The defendant was given bail by the police on 13 April 2014 until 19 June 2014.  On that day he appeared before Ms Bina Chainrai, Principal Magistrate, sitting in Court 1 at Eastern Magistrates’ Court.  The defendant pleaded not guilty.  The prosecution had no objection to bail being extended until the defendant’s trial date.  Accordingly, he was given bail on condition that he deposited $500 with the court.

4. On 14 July 2014, the defendant again duly attended Eastern Magistrates’ Court.  This time he came before Mr Symon Wong in Court 6.  However, the defendant then applied to have an adjournment to secure legal representation.  That application was granted but the defendant’s bail was immediately revoked.  The defendant then asked the magistrate for bail, offering $1,000 cash bail and the surrender of his travel documents.

5. The prosecution, quite rightly in the circumstances, stated that they had no objection to bail.  The magistrate still refused to give bail.  The record of bail proceedings signed by the magistrate, a copy of which I have been provided, gives no reason at all as to why bail was refused.  It merely states, “Remanded in gaol custody.”  All 15 boxes on the Extract of Record of Bail Proceedings form, which provide a variety of reasons as to why bail may be withdrawn are conspicuously left blank.  These are followed by the magistrate’s signature.

6. The withdrawal of bail, in the circumstances I have described, is utterly shocking.  There was not one single valid reason, either provided by the magistrate or on the facts for withdrawing bail.  This was a blatant abuse of power to lock up an unrepresented defendant who was himself powerless to do anything about it. 

7. If the magistrate was irritated by the defendant wanting a contested trial or by his request for legal representation, as it seems he must have been, this was no reason for the quite outrageous and disproportionate action he took.  As a matter of fundamental law, there is a presumption in favour of bail. 

8. The liberty of the subject is not some theoretical catchphrase.  To lock someone up without sound reasons is entirely contrary to our system of law.  Fortunately for the defendant, we have a Department of Justice which is there, amongst other reasons, to protect the rights of those who have been unfairly treated.

9. The magistrate’s refusal to grant bail has been brought to this court’s attention as quickly as possible by the Department of Justice and Ms Annie Li, on the Department’s behalf, has outlined to me the deplorable circumstances in which the defendant was remanded in custody pending his trial.  Such conduct on the part of a magistrate must never happen again.  It brings disgrace on the judiciary whose reputation has been built on the fairness and equal treatment it gives to all parties who come before the courts.

10. Now, as to this bail application, as I indicated to the defendant before these proceedings began, bail will be granted.  Cash bail in the sum of $500 is already lodged with the court and there will be no other conditions.

11. Mr Leung is owned an apology on behalf of the judiciary for the way he has been treated in this case which I am glad to be able to extend to him now.  This should never have occurred and it is to be hoped that there will be no further example of this kind of behaviour from the Bench.

12. I would also like to compliment the Department of Justice for immediately recognising the injustice which was done to Mr Leung and, as soon as this was recognised, for bringing it to the attention of the court.  I should just add, though, that this court is fully geared to hear same‑day bail applications before a High Court judge in cases which reveal such a clear cut denial of justice as this, where the wholly inappropriate use of judicial power has been wielded to incarcerate someone who was plainly entitled to his liberty.  It is to be hoped in future that, in a case such as this, the application can be heard even sooner than it has.

13. The reality is this, that the defendant only applied for bail on 16 July 2104, two days after he had been put into custody.  This was faxed through to this court at 11.36 am on Wednesday, 16 July 2014, and a copy was also sent to the Department of Justice.  The court administration, when it received the form applying for bail, allowed, as is usual for routine applications, two clear working days before the hearing and so they originally listed the case for Monday, 21 July 2014.

14. However, the Department of Justice, realising that this was not a routine application and that they had at no stage opposed bail, informed the court this morning.  As a result, the case was listed for this afternoon.  Obviously, this could have been picked up more quickly as the Department of Justice could have noted the urgency of the application on the copy of the bail form faxed directly to them on 16 July 2014.  For one reason or another, this was overlooked.

15. If the defendant had had the advantage of legal representation, the whole apparatus for arranging an urgent application for bail could have been put into place on 14 July 2014, immediately after bail had been refused. As a matter of procedure, aside from ordinary common sense, such applications should be clearly marked ‘urgent’ and a short reason should be provided to indicate to the court why the application needs to be put on as quickly as possible.

16. In this case, all that needed to be said was that the magistrate had refused bail on his own initiative, without giving any reason and the prosecution had at no stage objected to bail.